Saturday, September 22, 2007

Journalists jailed for contempt: Delhi HC

Delhi HC jailed Journalists for contempt: Delhi HC

SNS & IANS

New Delhi, Sept. 21: The Delhi High Court today sentenced two journalists, a cartoonist and the publisher of afternoon tabloid Mid-Day to four months imprisonment each for contempt of court for publishing unsubstantiated news reports against former chief justice Mr YK Sabharwal. All four were then released on bail. A Division Bench of Mr Justice RS Sodhi and Mr Justice BN Chaturvedi held: “We feel, in this peculiar case, the contemnors have tarnished the image of the highest court, and sentence of four months’ imprisonment would serve the ends of justice.”

They had alleged in news reports on 19 May that Mr Justice Sabharwal, in his capacity as the CJI, had passed orders, during the sealing of commercial property in the Capital, that favoured his sons, who are close associates of mall developers. As ordered by the Supreme Court on Wednesday on their plea, all were released on bail after furnishing bonds.

On 11 September, the court had held them guilty, saying that they had crossed the Laxman Rekha by publishing scandalous articles about Mr Justice Sabharwal.

“The publications, in the garb of scandalising a retired Chief Justice of India, have in fact attacked the very institution, which according to us is nothing short of contempt,” the Bench said. The court rejected the contention of the daily, which had submitted that a judge, after retiring, ceases to be part of the judicial system and writing against him did not come within the ambit of contempt of court.

“The nature of the revelations and the context in which they appear, though purporting to single out the former Chief Justice of India, tarnishes the image of the Supreme Court itself. It tends to erode the confidence of the general public in the institution,” the Bench said.

Senior counsel and former law minister Mr Shanti Bhushan, who represented the journalists, contended that the material on record had ample proof of the fact that Mr Justice Sabharwal’s sons had indeed been beneficiaries during the sealing of commercial premises in the Capital.

“If a journalist reported truthful matters, then he should be judged on that basis. We have been asking for a change in contempt law and the Guild is again meeting next month when we will further deliberate on the issue on the basis of this judgement, proceedings in different courts,” said the secretary general of Editors’ Guild of India KS Sachidananda Murthy.

“We have said that what we have said is the truth and that is why we should not be hauled up for contempt...We have also said that an ex-judicial officer ceases to have the protection of contempt law,” Vitusha Oberoi said in her reaction to the court judgement sentencing them to four-month imprisonment.

The Law about Criminal Contempt

In Criminal contempt is defined under Section 2 (c) of the Contempt of Courts Act, 1971 as “the publication, whether by words, spoken or written, or by signs, or by visible representation, or otherwise, of any matter or the doing of any other act whatsoever which -

i) scandalizes, or tends to scandalize, or lowers or tends to lower the authority of any court; or

ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

iii) interferes or tends to interfere with, or obstructs, or tends to obstruct, the administration of justice in any other manner.

In until last year, neither truth nor good faith could be offered as defence to a charge of contempt. But since last year, by virtue of an amendment to the Contempt of Courts (Amendment) Act, 2006, truth is recognised as a valid defence in any proceeding for contempt of court. The amendment precludes courts from imposing a sentence for contempt unless the contempt is of such a nature that it substantially interferes or tends to substantially interfere with the due course of justice.

What Some judges said

If men, including Judges and journalists, were angels, there would be no problems of contempt of court. Angelic judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise. ~ Frankfurter, J. of the US Supreme Court in Pennekamp v Florida

Let me say at once that we will never use the jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. ~ Lord Denning in R. v Metropolitan Public Commission Ex Parte Blackburn.

A group of social activists have issued the following statement criticising the Delhi High Court for sentencing four journalists of Mid-Day for contempt of court in a case involving the former Supreme Court Chief Justice, Y.K. Sabharwal.

***

The decision of Delhi High Court to sentence Mid-Day journalists to four months of imprisonment for publishing certain well-researched facts supported by suitable documents… is not merely wrong, it sends a strong signal to the rest of the country, especially to the media that if anyone dares to speak, publish or publicly discuss any wrongdoing by any court or any judge, it would be treated as contempt of court and he/she would be severely punished for that. We, the undersigned, consider this to be an assault on our freedom of speech and expression.

While it is important in any society that its judiciary inspire public confidence, such confidence cannot be engendered by using the threat of contempt action to deter exposure of any wrongdoing in the judiciary. Public confidence in the judiciary is created by the actions of the judiciary and any reckless allegations against it are quickly seen to be what they are. In a free society, such allegations do not stick, if they are incorrect or reckless. The use of the power of contempt to stifle allegations against judges would only increase public suspicion about the judiciary and indeed engender contempt for it.

Public confidence in the judiciary cannot be maintained by silencing dissenting voices or exposure of wrongdoing. Such exposure of all institutions, including the judiciary, is also essential in public interest for corrective action to be taken. Expose of any wrongdoing in any public institution and action against the wrongdoing only enhances the prestige of that institution rather than lowering it. It suggests that self-correcting mechanisms exist.

An independent and credible enquiry is required into these allegations, since that would reveal what the truth is. However, without going into the truth of the allegations, and without ordering any enquiry, the High Court of Delhi has sentenced these journalists to four months of imprisonment each. This judgment, unless reversed, is bound to send a clear message to the whole nation that if any judge indulges in any wrongdoing, the people of India do not have a right to speak about it or demand an enquiry into it.

We, like millions of citizens of India, have great regard for many things that the Indian judiciary has done in the past, particularly to protect the cherished fundamental right of free speech. However, this judgment strikes at the foundation of our respect. It makes us wonder why the Courts are averse to a full enquiry. Further, why are the Courts aggressively pursuing the journalists, who did a public duty to bring these facts in the public domain? To our mind, such conduct of the Courts lends further credence to the allegations reported by these journalists. It is unpalatable to us that the men who did their journalistic duty in exposing corruption be sent to jail while no enquiry is set up against the judge.

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